1. Petition G.P. No. 102 of 2007 has been filed by Vijay Kumar Bhartia Family Trust claiming to hold 95,001 shares constituting 47.5% of the total paid-up shares in M/s. Ranken & Company Private Limited (the Company) alleging mismanagement in the affairs of the company by the respondents. The affidavit has been affirmed by Shri Vijay Kumar Bhartia in his capacity ns a Trustee of the Trust. The respondents raised a preliminary objection that the Trust not being a juristic person cannot institute the proceedings in its name. In view of this, the applicants herein, viz., Vijay Kumar Bhartia and Rajshree Bhartia, each holding 1 share in the company, and in their capacity as Trustees of the Trust, have filed the instant application C.A. No. 5 of 2009 seeking for being added as party petitioners to the petition.

2. Shri Sarkar, Sr. Advocate, appearing for the applicants, submitted : The ownership of shares by the Trust has been admitted. Since the owner is not a legal person, the applicants could represent the owner as Trustees! Further, the applicants by themselves are shareholders. Therefore, there is no legal impediment in allowing this prayer to add them as party petitioners. In Purushottam Umedbhai & Co. v. Manilal & Sons (AIR 1961 SC 325), the Supreme Court considered the issue whether a plaint in a suit filed in the name of a firm could be amended by substituting the names of the partners. In that case a single judge of Calcutta High Court rejected the petition for amendment on the ground that the original plaint was no plaint in law and therefore, the only course available was to withdraw the suit and file a fresh suit. The Division Bench took the view that the suit brought in the firm name should properly be considered a case of description of the individual partners and as such a mis-description, which in law can be corrected. The Supreme Court concurred with the decision of the Division Bench holding that a plaint by all the partners of the firm with the defective description of themselves, a court could permit an amendment to the plaint to enable a proper description of the plaintiff in order to assist the court in determining the real question or issue between the parties. Similarly, in the present ease, since the real issue is between the applicant shareholders who control the Trust holding 47.5% shares and the respondents who also hold the similar percentage of shares, the amendment should be allowed and the applicants be added as petitioners.

3. Shri Mookherjee, Sr. Advocate, appearing for the respondents submitted : Since the Trust is not a juristic person, it could not have filed this petition at all as it has no capacity. Therefore, the petition itself is a nullity. By amendment for substitution or addition of the applicants as petitioners, the initial defects cannot be cured. In so far as the case relied by Shri Sarkar is concerned, the Supreme Court only held that in terms of provisions of Section 153 of the Civil Procedure Code, the amendment to the plaint could be allowed. Further, Order 30(1) of Civil Procedure Code permits partners constituting a firm to sue or to be sued in the name of the firm. However, in case of a Trust, all the Trustees have to join together. In the present case, even the original affidavit has been signed only by one of the Trustees. In Master Zohra Khatoon v. Mohammad Jane Alam (AIR 1978 Calcutta 133), the Court has held that when a suit itself is not maintainable, no amendment can be made. Since in the present ease, the petition itself is not maintainable for want of capacity on the pail of the Trust, no amendment can be allowed.

4. I have considered the pleadings and arguments of the Counsel. It is true that the Trust being not a juristic person cannot file a petition. However, in terms of Section 399, any member with the prescribed qualification can file a petition under Section 397/398. If the name of the Trust is in the register of members or if share certificates have been i